Ectogestation and Surrogacy: Reforms and Future Reflections

There have long been calls for reform to surrogacy law – and the Law Commissions’ recent project represented a significant step towards meaningful change. However, the regulation of surrogacy cannot be considered in isolation and inevitably raises questions about other reproductive technologies. A symposium, funded by Broadly Conceived, explored the broader implications of the Law Commissions’ recommendations relating to surrogacy. In this blog series, each presenter from the symposium reflects on the impact of these recommendations on current (and future) reproductive practices.

Dr Victoria Adkins, University of Greenwich

Key words: ectogestation, artificial placenta, gestation, parenthood, law reform

Image credit: Google Gemini

Introduction

In the previous blog posts in this series, authors have considered the implications of the Law Commissions’ recommendations for reform in relation to existing practices and technologies such as uterus transplantation and egg donation. However, artificial placentas have not yet entered the clinical domain, and their first introduction will be aimed at improving the survival and morbidity outcomes for premature infants. This initial iteration of artificial placentas will undertake partial ectogestation - the gestation of a foetus outside of the human body following delivery from a human pregnancy. The development of this technology is far underway with successful trials completed with lambs equivalent to human gestation of 22-24 weeks and clinical trials arguably on the horizon.

In a much further (and perhaps ongoing hypothetical) future, the fruits of embryo research alongside continued development of artificial placenta technology may meet and create the possibility for full ectogestation, whereby gestation takes place entirely outside of the human body.  Although developers of artificial placenta technology are not currently aiming for this outcome, it raises the possibility of a future where individuals unable to gestate themselves could choose between human gestation via a surrogate or technological gestation via an artificial placenta. If surrogacy and artificial placentas come to co-exist, how may that influence the gestational choices individuals come to make? This blog post explores some of the issues raised (and addressed) by the Law Commissions’ recommendations and considers their potential impact in a future where full ectogestation is possible.

Parenthood and gestation

Central to much of the contention surrounding surrogacy is the involvement of a third party and what this means for the resulting child’s parentage. The law is quite clear in section 33 of the Human Fertilisation and Embryology Act 2008 that the individual who “carries or has carried a child as a result of placing of an embryo of sperm and eggs within her” is the legal mother. If full ectogestation were to become possible, then the obvious question is who the legal mother would be. No woman would have the embryo placed within her and it would surely be an absurdity to give a machine the status of a legal parent. The Law Commissions’ proposal on parenthood may provide the answer to this question.

The recommendation is that the intended parents, rather than the surrogate, should be the legal parents of the child at birth. By de-emphasising the legal weight given to gestation and placing more emphasis on intention, arguably those who engage with the use of an artificial placenta with the intention of raising the resulting child could equally be considered legal parents at birth. The pre-conception checks of the surrogate may be replaced with safety, efficiency and consent processes.

A risk that the Law Commissions’ recommendations do not mitigate, however, is the possibility of those intended parents changing their mind. In their provisional proposals, the Law Commissions suggested that intended parents would not be able to withdraw their consent to parenthood during the surrogacy journey. However, that proposal is no longer explicit in the current recommendations. Regardless, even if intended parents were not legally able to withdraw consent to becoming the legal parents of the child that results from artificial gestation, the practicalities of enforcing this, even in the surrogacy context, remain questionable. Whilst a surrogate may receive protections from the responsibilities of legal parenthood, in both scenarios a child would be left without parents, creating an onus on the state to impose a locus parentis. The need for logistical clarity becomes even more pertinent if the parents’ change of mind occurs during gestation. Whilst a surrogate would retain the bodily right to terminate the pregnancy, would healthcare professionals or the state have a right to disengage the artificial placenta? Would the entity within the device be considered akin to the surrogate’s foetus or a neonate on a neonatal intensive care ward?

Who is in charge?

The answer to these questions may never come to fruition if full gestation via artificial placentas does not come to be considered as an ethical means of bringing children into the world. In seeking to offer a new regulatory pathway for surrogacy, the Law Commissions were tasked with how to regulate surrogacy as opposed to whether it should occur as a practice.

The current position with full ectogestation (and even arguably partial ectogestation) is that we remain in a position to question whether the development should be supported and regulated. Science often advances more quickly than the law and yet a unique opportunity arises to examine the ethics of full ectogestation before it becomes a clinical reality. Whilst speculation as to full ectogestation has been disparaged by developers of the technology, who remain firm in their aim of improving the care of premature infants, history has shown that the unthinkable can become the norm. The prospect of someone carrying a child to whom they had no genetic relation would previously have been unimaginable, yet the advent of in vitro fertilisation (IVF) and gamete donation has made this a reality.

Given the Law Commissions’ recommendations for non-profit regulated surrogacy organisations regulated by the Human Fertilisation and Embryology Authority (HFEA), and the recognition that the practice requires its own specific regulatory framework, then it is reasonable to expect that full ectogestation would similarly require its own regulatory remit. However, section 2(1) of the Human Fertilisation and Embryology Act 1990 describes treatment services as medical, surgical or obstetric services “…for the purpose of assisting women to carry children.” By virtue of full ectogestation not engaging an individual’s body to carry a child, it would fall outside of the regulatory remit of the HFEA. The question is then who may come to regulate this technology. Could a potential future where surrogacy and full ectogestation co-exist demand a new regulatory body?

Pods or people?

Beyond the legal and logistical issues that artificial placentas may present, which the Law Commissions’ recommendation may or may not resolve, the potential advent of full ectogestation tugs at the Law Commissions’ claim that surrogacy be considered through its “own lens”. Full ectogestation would not have been in the minds of the Law Commissions’ when drafting their recommendations. However, surrogacy, uterus transplants and artificial placentas have already been argued to be a “genus” of assisted gestative technologies that each assist individuals with gestation. Arguably, therefore, surrogacy and its regulation cannot operate in silo.

Full ectogestation may exist in a future whereby surrogacy is well regulated and faces much more acceptance. However, in light of the Government’s restricted time to consider the issue, reforms of surrogacy regulation may take place at a time when the development of full ectogestation has gained more traction. Might this then have an impact on the regulation of surrogacy? If the potential of a technological “surrogate” enters discussion, might anti-surrogate activists jump on this to perpetuate their narratives of “exploitation” in the use of another’s body? Alternatively (and as will be evidenced in future forthcoming work) might technological advances be deemed to be going “too far” and the value of human gestation, and in turn surrogacy, come to be heralded as the most reliable and safest option?

A future in which people argue over human or technological gestation may seem unbelievable, but it is just as incredible that surrogacy, a practice that has being ongoing for decades, has only now become the focus for law reform. Perhaps it is not so extreme to argue that how surrogacy is viewed in the future could come to be challenged by new advances, and it may be that the robustness of the new regulation, whether it takes the form as suggested by the Law Commissions or not, could influence what that future looks like.